The opinion of the court was delivered by
— Harding agreed with Pratt, when he bought this lot from him, to construct the docking along the creek side of the lot, so as to prevent the overflow, and of course he is in law bound to perform his contract, and the plaintiff has some remedy. The work is to be maintained also by Harding after it is constructed, and that part of the agreement establishes a relation of duty essentially connected with ownership, and it stands in the title and runs with it: 27 State Rep. 258; 23 Id. 316.
Harding accepted the deed containing the agreements on his part, but did not himself execute it by his name and seal. Plainly enough, we cannot help implying his acceptance of the terms of the grant, and this is an agreement by him, not under his seal, and he may be sued in assumpsit for a breach of it; though, perhaps, the law would also imply a covenant, if necessary.
For neglecting to construct the docking he is personally liable; and having failed to do it, the plaintiff had an express contract grant to do it at his expense. We think that the evidence to prove the defendant’s breach of his contract, and its execution by the plaintiff, and the cost of it, was improperly rejected.
Judgment reversed and new trial awarded.