54 Neb. 523 | Neb. | 1898
In 1885 William E. Clarke owned the east one-third of lot 6, in block 158, in the city of Omaha. Immediately east of this lot was lot 7, in said block, owned by George Warren Smith. On this date Clarke was about to erect a building upon his lot and a contract in writing was then made between Clarke and Smith and placed of record in the office of the register of deeds of Douglas county. This contract provided that Clarke, in constructing the east wall of his building, might place one-half of said wall on Smith’s lot, and that such wall, when constructed, should be and remain a party wall for the use of said contracting parties, their heirs and assigns. The contract also provided that in case Smith, his heirs or assigns, should build upon said lot 7, he should be at liberty to use said wall as the west wall of the building constructed, and in case he did so, he should pay to Clarke a certain proportion of the value or cost of the part of the party wall used. After the execution of this contract Clarke constructed a building on his lot, one-half, if not more, of the east wall of which stood on
1. Complaint is made here of the action of the district court in the admission and exclusion of certain evidence on the trial. We cannot review these complaints, because they are not specifically assigned in the petition in error.
2. Other complaints relate to the action of the district court in giving and refusing to give certain instructions. We cannot review these complaints because plaintiff in error took no exceptions to the action of the court in giving and refusing to give the instructions complained of at the time. The case was submitted to the jury on June 27, and the record discloses that the plaintiff in error filed exceptions to the instructions com
3. The only defense of Kennard to this action which the district court submitted to the jury was the following : Kennard claimed that when he went into possession of the leased lot for the purpose of erecting a building thereon he discovered that more than one-half of the said party wall stood upon the lot which he had leased, thus depriving him of the use and occupancy of a part of the lot; that he thereupon notified Smith and Clarke that more than one-half of the party wail stood upon Smith’s lot and that he, Kennard, would not connect his building with the party wail, but would erect an independent wall of his own, unless Clarke would give him an agreement in writing that at the expiration of the lease he, Clarke, would pay to him, Kennard, a specified sum of money, — being the amount it would cost, or a part of the amount it would cost, Kennard to connect his building with the party wail,; — and that Clarke would also pay a certain portion of all taxes assessed against the leased lot duiing the existence of the lease; that Clarke then and there agreed that if Kennard would connect his building with the party wail he, Clarke, at the expiration of Kennard’s lease, would pay to him the stated sum of money estimated as the cost of connecting Kennard’s building with the party wail and would during the exstence of the lease'pay a specified portion of all taxes assessed against the leaséd lot; that relying upon this agreement he erected his building and connected it with the party wall; that he reduced to writing the contract between himself and Clarke and presented it to Clarke for his signature; that he retained it for some time, and finally refused to sign it. It is now insisted that this answer of Kennard's did not state a defense. We think it did. Kennard, by accepting a lease of this property from Smith subject to the party-wall contract
4. It is somewhat strenuo'usly insisted that the finding of the jury sustaining this defense of Kennard is unsupported by sufficient evidence: We confess that had we been the triers of the issues of fact we should have found that the contract pleaded was never made; but, after as careful an examination of this record as we are capable of making, we are constrained to say that there is sufficient evidence in the record to sustain the jury’s finding that it was made, and we may not substitute our opinion for that of the jury. It follows that the judgment of the district court must be, and is,
Affirmed.