Rice v. Roberts

24 Wis. 461 | Wis. | 1869

Dixon, C. J.

The claim of the plaintiffs, upon which this action is brought, is divided into two branches; the one, the price agreed to be paid for one-half of the party wall when used; and the other, the damage claimed by the plaintiffs for the erection of the building by Strickland beyond the line of the plaintiffs’ building, and up to the line of the street in front of the same.

We will consider the last branch first, namely, the claim for damage; and upon that we have but little to say. The contract was a verbal one, no writing whatever having been made or signed by the parties. The right claimed by the plaintiffs under it, to control or dictate as to the use which should be made of the adjoining lot, or the manner in which the owner should build upon or occupy it, was obviously an interest in, or power over, land. By the statute of frauds, every such interest in, or power over, the land of another must be granted or created by writing, subscribed by tlie party granting or creating the same, or it is void. R. S. cb. 106, §§ 6, 8. This contract, being clearly within, the statute, is therefore void, and no action can be maintained upon it in this respect. Upon this question we refer to the case of Wolfe v. Frost, 4 Sandf. Ch. 72, cited by counsel for the defendant; for it is seldom that an authority so exactly in point can be found. The opinion of the assistant vice-chancellor is an able one, and very satisfactorily disposes of this question.

The other branch of the plaintiffs’ claim, though resisted on the same ground, may not be within the statute of frauds. If the defendant had continued the owner of the lot, and had himself erected the building, and used the party wall, no reason is perceived why the plaintiffs might not have recovered the price agreed upon for building the defendant’s half of it. It would then have been a contract executed on the part of the plaintiffs, and so not within the statute; and the defendant, having received the benefit of the work performed, and materials furnished, would have been obliged to pay the price according to his promise. But, inasmuch as the defendant had sold and conveyed the lot before the plaintiffs built the wall, and as the plaintiffs were immediately informed of the sale and conveyance, and built the wall knowing that the defendant had no interest in it, and would derive no benefit from it, the question arises, whether they can now insist upon his paying for it. It does' not appear that the defendant was guilty of any bad faith in the transactions, or that the plaintiffs had not ample time and opportunity to have fully protected themselves from any loss or damage in this respect, either by contracting with Strickland, the defendant’s grantee, or by refusing to build one-half the wall on Strickland’s lot. But since the contract was not at that time obligatory upon the defendant, the plaintiffs not then having executed it, or entered upon the work, it seems to us that the plaintiffs ought not, under the circumstances, to be permitted to avail themselves of its subsequent execution for the purpose of charging the defendant with the expense. The sale and conveyance of the land by the defendant, with notice thereof to the plaintiffs, were equivalent to a revocation, on the part of the defendant, of the contract or license to go on and build the wall, which he had the right to revoke; and the building of the wall thereafter by the plaintiffs, with intent to charge the defendant with the price, seems to savor somewhat, to say the least of it, of want of due care and diligence on their part in the performance of their duty toward the defendant. We do not think, therefore, that there should be any recovery upon this branch of their claims, and are, consequently, of opinion, that the judgment of the circuit court was correct, and should be affirmed.

By the Court. — Judgment affirmed.