108 Minn. 177 | Minn. | 1909
Appeal from a judgment of the district court of the county of Ramsey enjoining the defendant from maintaining openings for windows in a party wall resting on the land of the respective parties, and requiring the defendant to remove the windows and close the openings.
The complaint alleged the making of a party wall contract by the parties hereto, whereby it was agreed that a brick wall should be built and maintained, one-half on the land of each of the parties, the center of the wall to be the line between the respective lands; that the defendant, in the first instance, should construct and pay for the wall, and that thereafter the plaintiff should have the right to use so much
The answer admitted the party wall agreement, alleged that the openings and windows in the wall were constructed with the knowledge and consent of the defendant, and that they in no manner affect the rights of the plaintiff or damage his property. Except as admitted therein, the answer denied the allegations of the complaint. The reply put in issue the new matter alleged in the answer.
The alleged equitable cause of action was triable by the court without a jury, unless the court submitted some specific question of fact to them, and the issues in the legal cause of action for damages were triable by a jury. This distinction was observed by the trial judge, and at the close of the evidence the second alleged -cause of action only was submitted to the jury, as to which the jury were instructed as follows:
“The only part of this case you can try is the question of whether or not Mr. Stein is entitled to recover damages, and, if so, what amount? Now, gentlemen, if you find from the evidence that Mr. Stein at the time this wall was constructed, consented that the windows should be put in there, why I think that prevents him having any right to recover damages; but if you do not find that he con-
The jury returned a general verdict for the defendant, and the plaintiff made a motion for judgment notwithstanding the verdict, or, in the alternative, for a new trial.
The trial court, after hearing the motion, without making any findings of fact, or taking any other action with reference to the first alleged cause of action, ordered judgment for the relief asked for in the complaint; and it was so entered. The assignments of error present the question whether the trial court erred in so ordering judgment for the plaintiff. It is clear that it was error; for the judgment ordered related solely to the first alleged cause of action, as to which no findings of fact as a basis and warrant for the judgment were made. Dunnell (Minn.) Pr. § 514. The assignments of error, however, do not specify the failure of the court to make findings of fact as one of the reasons why it erred in ordering judgment notwithstanding the verdict. We therefore base our decision upon a consideration of the assignments of error which are in substance, that upon the pleadings, verdict, and settled case it was error to order judgment for the plaintiff.
The defendant urges that the verdict, in connection with the issues, the evidence, and the instructions of the court to the jury, sustains his contention that the plaintiff directly or impliedly consented to the construction of the wall with the open spaces for windows until he should be ready to pay one-half of the cost of the wall and use it as a party wall. The plaintiff, on the other hand, contends that the verdiet, under the instructions of the court, does not establish his alleged consent, and, further, that there was no evidence tending to support a verdict or finding that the plaintiff did directly or impliedly so consent.
An examination of the record discloses evidence tending to show
The verdict was for the defendant; but it cannot be held, in connection with the evidence, conclusively to establish the fact that the plaintiff did consent to leaving the window spaces in the wall. Much less does the verdict establish the fact that he did not so consent. We have, then, a case where the main issues were whether the plaintiff consented to the leaving of window spaces in the party wall, and whether, if he did not, he sustained any damages by the act of the defendant in leaving such openings, with evidence tending to support the defendant’s contention, and a verdict for the defendant, followed by simply an order for judgment notwithstanding the verdict, granting a mandatory injunction requiring the defendant to take the windows out of the party wall and close the openings.
We are of the opinion that, if the plaintiff impliedly consented to the construction of the party wall with openings for windows until such time as he should pay one-half of the cost of the wall and use it as a party wall, he is not entitled to a mandatory injunction closing the openings, in the absence of a showing that their further maintenance would result in irreparable injury. Dunscomb v. Randolph, 107 Tenn. 89, 64 S. W. 21, 89 Am. St. 915 ; Paul v. Cook, 4 Neb. (Unof.) 467, 94 N. W. 997; 30 Cyc. 785. It follows that the trial court erred in granting the plaintiff’s motion for judgment notwithstanding the verdict, without any determination of the issue as to the plaintiff’s consent.
Judgment reversed and a new trial granted.