14 Ohio C.C. 229 | Oh. Circ. Ct. | 1896
The action in the lower court, was by Ida Geyer against John A. Hall, and was to recover one-half the cost of building a party wall, erected on the division line of lots 104 and 105, in the city of Tiffin. Geyer asserted a right of recovery by reason of her ownership of lot 105 and the building thereon, including the wall in question, the right and title of which she acquired directly, by proper conveyances,from different persons in line from Lewis Wisler, who was the owner of lot 105, and constructed the building
Hall’s answer is first, in effect, a general denial of plaintiff’s claim; denial of the alleged agreement between Wisler and himself, by which he agreed to pay one-half the cost ■of the wall to the owner of the building, and a denial of all liability in the premises. Pleading further, Hall assets that Lewis Wisler, the owner of lot 105, and the builder of the wall, while such owner, released and discharged him of ■all liability on account of the said wall. There is another ■defense set up — that of res adjudicate, that the identical ■question made in this case was litigated in a former case and determined upon a hearing on the merits, by a court ■having jurisdiction of the subject matter, so it cannot with propriety be further litigated. A reply denies a release =and discharge of Hall from liability, by Wisler, and denies ■former adjudication.
The issues thus joined were tried to the court, the parties waiving a jury,resulting in a finding and judgment in favor ■of Mrs. Geyer,for $592.20, after the overruling of a motion for new trial. Hall excepted to all this, secured a proper bill of exceptions containing all the evidence had on the trial and showing the ruling of the court on the admission of evidence,and filed it in this court with a petition in error, seeking a reversal of the jxxdgment and a new trial of the case,
It is said in the petition in error that the court of common pleas erred: 1. In admitting and in rejecting evidence-on the trial, to which exception was taken and noted at the-time. 2. ' That the finding and judgment is not supported by sufficient evidence, and is contrary to law.
The assignments 'of error in the. petition are nine as. therein numbered, two of which I have stated, viz: Errors in. the matter of ruling as to the admissibility of evidence, and that the finding is not supported by sufficient evidence.
Again, John A, Hall was produced as a witness in his own behalf, and asked the question:
“State if Harry Wisler was present at any time when you and his father, Lewis Wisler, made any arrangement or-agreement respecting this party wall?”
Most of the material facts are agreed upon by the parties, and stated in the bill of exceptions. These facts are,in substance: That Mrs. Geyer owns the lot 105 with the appurtenances; that it came to her by proper conveyances from Lewis Wisler,now deceased; that Hall, then and now, owned lot 104; in 1874, Lewis Wisler built, on lot 105, a three story brick building, now, and for years, used as a hotel; lire south wall of said building stands one-half on and along ■the south line of lot 105, and one-half on the north line of lot 104. One-half the value of the wall is 1592.20. It is destiHed by Henry Wisler, a son of Lewis, that before the building was undertaken by his father, there was a conference and- transaction between his father and Hall,with reference to the building of a party wall; that Hall assented to the.placing of the wall, one-half of it, on the lot line of lot 104; gave permission to occupy sufficient space on his lot 104, for that purpose, but stipulated that Wisler was to be at the entire expense of building the wall, and that he, Hall, was not to be liable for an'y portion of such expense, and was not to pay any part of it, until such time as he desired •to use the said wall for his own building, when he was to pay one-half of the original cost of it. It is undisputed •that Hall, in 1894, erected a building on lot 104, and used the said wall as one of the walls of is said buliding, and Ire has paid nothing for the wall to any person. The testimony of Henry M. Wisler is not controverted, otherwise than by Hall,who says Henry M. was not present when the ■contract was made. These facts, admitted, and proven by the weight of evidence, abundantly show a contract, concerning real estate — a party wall — in which some title or (right in the nature of an easement, was acquired in Hall’s lot 104, upon which to rest one-half of a division wall, and
On the question of the release of Hall from liability by Wisler, there was an absolute, total failure of proof; and there was a dearth of evidence as to the other proposition. The only particles of evidence that would seem, in any degree, to warraut a belief that the contract to pay for the wall when used was, or became, personal, was the statement of Henry M. Wisler, that Hall agreed to pay his father •one-half the cost when he came to make use of the wall. We think that statement supplies a base, entirely too attenuated, upon which to rest the claim cf personal contract-, •or personal liability, and does not warrant it. It must be borne in mind the contract was oral, no part of it was in writing, and made more than twenty years before the wit_ •ness stated his recollection of it, and the details of the talk must necessarily have faded from memory and became vague and indefinite, so that the witness could not only, in the very nature of things, recall the more prominent or salient propositions of the transaction. In this view the transaction and the testimony of the witness must be reasonably construed and interpreted, in the light of the attending and •surrounding circumstances, and keeping in.mind the attitude, •object and conduct of the parties at the time of the contract, and what was done, and their conduct subsequently. Interpreted in this'way, beyond the fact that the persons making the agreement were Lewis Wisler and John Á. Hall,there is absolutely no fact, or circumstance, or suggestion ■even, that the obligation of Hall to pay, sometime in the future, was intended to be personal to Wisler, or that the parties were intending to do other than make an entire contract concerning real estate by which the one party was to ■construct a party wall, and the other was to pay his just portion of its cost when he used it for his own benefit^ We think the court below was justified in finding, as we think
We do not ground our approval of the finding of the lower court upon the rule, that there being a conflict of evidence as to the issues involved, which that court could the better weigh, and having done so, we -could not find its findings manifestly wrong, and so approve it; but we distinctly want to place our approval of the lower court’s action upon the ground that the finding is precisely right and in accord with the clear weight of the evidence.
- We find no error,and the judgment is affirmed, with costs.