| Court for the Trial of Impeachments and Correction of Errors | Jul 15, 1845
I think the evidence offered by the plaintiff, and which the judge refused to receive, was proper, and ought not to have been excluded.
In 1834, the plaintiff and defendant, with three others, entered into a contract which contemplated the purchase, for the benefit of said five persons, of a piece of'land called the meadow; jtnd which contract provided that in case the purchase was made, the meadow should be filled up by removing earth from the hill then owned by the defendant, at the expense of the several owners of the meadow. The purchase seems shortly thereafter to have been made; and the evidence given tended to show that the slide of the hill, of which the plaintiff complains, was occasioned by the removal of earth in 1842, and which was taken away by the defendant and the other owners of the meadow for the purpose of raising that piece of ground to its proper height, as is provided in the contract of 1834. In this state of the^case the plaintiff offered to prove that in 1836 he sold and conveyed all his right and title to the meadow land to the defendant, the same being done with the consent of- the other parties in interest: that there was then no danger of a slide from the hill, but that the one which occurred in 1843, and did the injury complained of, was caused by undermining the hill subsequently to the time when the plaintiff conveyed his interest to the defendant. This evidence the judge refused to receive; and the plaintiff excepted thereto.
. It was argued that the plaintiff was a party to the act complained of, and if it was negligent, the law will give him no redress. He was one of the parties who entered into the contract of 1834, which provided for a removal of earth from the hill to fill up the meadow; and this excavation was for that
The general principle certainly is, that the law will not allow any one to recover a compensation for an injury resulting from a negligent act to which lie was himself a party. (Cook & Cook v. The Champlain Transp. Co., ante, p. 91.) But how could this plaintiff have been a party to the act here complained of? He offered to show, not only, that in 1836 he conveyed all his interest in the meadow land to the defendant, but that the excavation which produced the injury was made long subsequently to that conveyance. Had this been established, the plaintiff could in no sense have been a party to the act complained of. It would not have been done by him, or for his benefit, but by the person to whom he Had transferred all his right, with the assent of the other parties in interest. As they were the persons who were interested in what was to be done, and as the plaintiff did not interfere, upon what principle can it he said that the law holds him to be a party? I confess I know of none on which this can justly be urged.
It is true, his contract of 1834 contemplated a removal of earth from the hill to the meadow. That was a legal contract, and we cannot infer that the parties designed to execute it in a negligent manner. Had the plaintiff continued a party in interest at the time when the acts of negligence occurred, it may well be that he could not have recovered. The excavation would have been for his benefit, and by persons who were in his employ, and to be paid in part by him. Their acts might have been bis, and he must have abided by all the consequences. But the facts were otherwise. The plaintiff, as he offered to show, parted in 1836 with all his interest to the defendant; and certainly, as between these parties, the law will not, upon what is
New trial granted.